The Duty of Care
When a physician agrees to provide medical services to someone who seeks treatment, the physician assumes a duty of care to the patient. If the physician breaches the duty of care, and the patient suffers harm as a result, the patient has grounds for a medical malpractice suit to recover damages.
Medical malpractice claims generally take the form of negligence suits. As such, the basic test for whether the doctor has breached a duty of care is the reasonable person standard. A person is considered negligent if she fails to act with the care a reasonable person would use in similar situations.
In the medical context, the determination of what conduct is and is not reasonably expected of doctors in various circumstances is not determined by reference to lay people. Physicians and other health professionals are judged against the reasonable expectations of other trained medical professionals. As such, the duty of care requires that physicians exercise the degree of skill and care that would be expected of an average practitioner in the doctor’s field of medicine. Failing to conform to these expectations is a breach of duty and thus negligence.
Let’s consider the case of McCourt By and Through McCourt v. Abernathy, wherein a woman was admitted to the hospital with shortness of breath and chest pains and a puncture wound in her finger. She informed the treating physician that she often worked around horses and had recently been injured by a horse. When she was initially treated by the physician, her condition had been steadily worsening.
The doctor prescribed oral antibiotics, and scheduled a consult with a specialist, but did not note any urgency in the patient’s condition despite her worsening condition and did not make a definitive diagnosis. When the specialist later examined the patient, he diagnosed her with a bacterial infection, moved her to intensive care, and began an aggressive course of antibiotics, but the patient died shortly thereafter.
At trial, expert witnesses testified as to several aspects of the initial doctor’s treatment which fell far below the standard of care expected of competent and skilled physicians under the same circumstances. Specifically, they named the failure to initially order a stronger course of treatment or laboratory tests, especially given the patient’s history of interacting with horses. Likewise, they pointed to the delay in calling in a specialist when the patient’s condition worsened as failing to conform the level of expected medical treatment.
Since these inadequate interventions and failures to act fell below what would be expected of capable physicians in similar circumstances, and the failure to properly treat led to the patient’s death, the doctor was found liable for medical malpractice.
The Standards to Which Doctors are Held
The “average practitioner” rule serves to establish a standard of care owed to patients, but it protects physicians as well. Under this approach, a physician is not liable for a mere error of judgement, or mistaken diagnosis or simply when the treatment leads to an undesirable result if the physician conducted himself in accord with the customary standard of practice.
At the same time, the “reasonable practitioner” standard raises questions regarding how the standard is determined. Can we really speak of the expectations of an “average practitioner” when professional disagreement among doctors as to proper treatment protocols is common? Moreover, given the fact that resources and education differ among doctors across regions, can the law reasonably mandate that all doctors be held to the same standard regardless of the circumstances of the doctor and her practice? Finally, if a physician has specialized knowledge and expertise not widely shared by medical colleagues, is he assessed based on standard medical practitioners or against those with comparable expertise?
To deal with these questions, the law has established rules for applying the reasonable practitioner standard in differing circumstances. One such rule is called the “respected minority” or “two schools of thought” rule. This rule is based on a recognition that while there may be aspects of medical practice which have been adopted by most competent practitioners, this need not mean that alternative approaches are inherently negligent. A “minority approach” to medicine can stem from alternative sets of legitimate judgements and determinations as to how best to treat patients in specific circumstances considering the state of medical research.
So, most jurisdictions allow physician defendants to raise the defense that the courses of treatment they followed are reputable and respected alternatives to the customary approaches of most physicians. This “respected minority” approach would not be in breach of the duty of care.
For example, in one case, a patient died because of a severe negative reaction to drugs administered by his doctor, who ordered the treatment because he believed the patient might imminently suffer a heart attack. The plaintiff brought expert witnesses who testified that proper procedure is to administer the drug following a heart attack to mitigate the impact. The defendant countered with his own witnesses who asserted that that the drug had preventative applications and could legitimately be administered prior to a heart attack, even with its attendant risks.
Rather than insisting that the jury decide which of the two approaches represented the “sole” or “best” standard for practitioners, the court accepted that the jury may find that the defendant’s approach, even if a minority protocol, could meet the standards of due care owed to the patient.
Each state adopts standards for what constitutes a respectable minority and for distinguishing a disreputable fringe medical practice from a treatment option that, while not the majority position, nevertheless meets the standard of care.
A related rule, the error in judgement rule, provides that when two or more courses of treatment are legitimate, a doctor is not negligent for choosing one of them.
The Locality Rule
Aside from differences among reputable medical approaches, medical treatments and outcomes are impacted by factors which depend heavily on local conditions. For many decades, the law recognized that physicians operating in rural and poorer areas often had less access to cutting edge medical technology. Likewise, they would have less opportunity to perform and gain expertise in the range of medical procedures which doctors in more urban areas encounter more frequently due to a larger population density.
As such, the standards for medical malpractice long incorporated the so-called ‘locality rule.’ According to the locality rule, a physician’s duty of reasonable care is measured against the care exercised by competent physicians of the same school of practice in the community in which the physician practices medicine, with due regard to the condition of medical science at that time. Under the locality rule, only evidence of the proper standards of medical care within the community or locality in which the doctor practiced could be used to determine whether the doctor was negligent in his or her medical practice.
However, modern case law has trended in the direction of minimizing or eliminating the locality rule, as courts have increasingly seen the underlying justification for incorporating a geographic element as anachronistic. It has been noted that with modern travel, ease of communication, the accessibility of medical literature and relocation becoming more common, there appears to be less reason to give substantial weight to standards in a particular community.
Instead, many courts have focused on a national standard of care, while still considering factors such as how limits on resources and availability of medical procedures impact the standard of care in specific cases. As such, a plaintiff need not offer evidence as to practice in a specific geographic location but may offer evidence on the custom of practice in locations with similar conditions to the one in the case before the court.
Finally, the law recognizes that some medical practitioners have specialized knowledge and expertise, and that prospective patients can reasonably expect a higher standard of care from such specialists. So, if a doctor is a specialist in a field of medical treatment, and the patient accepts treatment on this basis, the doctor’s duty to such a patient is to offer treatment with the skill, care, and learning ordinarily possessed by specialists of the class. Thus, the standard of care owed by specialists is higher than that applicable to the average practitioner.
Proving Breach of Duty – Expert Witnesses
As with all negligence-based civil actions, the burden in a medical malpractice case is on the plaintiff to demonstrate that the defendant’s conduct meets the elements of a negligence claim. Since evidence as to professional standards are usually known primarily to practitioners or others intimately familiar with common medical practice, proving a breach of duty generally requires the testimony of experts. These experts, doctors or others, can testify to accepted medical practices, and offer a judgement as to whether the defendant’s conduct was in line with such practices.
According to the rules of evidence, witnesses who testify based on expert knowledge, skill, and training must be qualified by the judge as competent to offer expert testimony. Once an expert has been qualified by a judge, it is up to the jury, as finder of fact, to determine how much weight and credibility to give to the expert’s testimony.
Someone is competent to testify as an expert witness if he possesses scientific, technical, or specialized knowledge which will help the jury understand the evidence or determine a fact at issue. In medical malpractice cases, expert witnesses are usually physicians in the same field as the one at issue. In some jurisdictions, if the defendant physician is a specialist in the field, only another specialist can offer expert testimony. But the more commonly applied rule is that as long as the witness demonstrates that he has the requisite knowledge, the witness need not be an active practitioner in that specific field or in some cases even hold a medical degree.
Note that while some jurisdictions still use a local or community standard as the basis for medical malpractice, this does not mean that experts necessarily must practice in the locality in which the case is brought. It would be sufficient to demonstrate familiarity with local practice through professional contacts with local practitioners.
Some states have undertaken reforms of the practice of hiring experts to testify in malpractice cases out of concern that they are acting as so-called ‘hired guns,’ who make a living by testifying as expert witnesses across many jurisdictions. In these states, the courts may require that the experts live in the state or practice in the same field of medicine, or other requirements designed to guard against less experienced physicians seeking to profit off malpractice cases.
When Expert Witnesses are not Needed
The need for expert witnesses can present challenges for plaintiffs seeking to prove negligence. Physicians are often reluctant to testify against fellow doctors, and the costs involved in arranging for expert testimony can be prohibitive. For these reasons, plaintiffs often pursue avenues of litigation that don’t require expert testimony. The law recognizes that in some situations, the grounds for a finding of negligence are so clear that a doctor may be held liable without the opinion of experts.
Typical scenarios are cases of overt error, such as when a doctor leaves medical instruments inside a body following surgery or when the wrong part of the body is treated, or an injury is caused to an area of the body unrelated to the procedure.
Some courts have held that such acts are negligent per se and therefore do not require expert testimony to establish a breach of duty. Other courts have applied the tort principle of res ipsa loquitur, which shifts the burden of proof to the defendant to prove that he was not negligent. Res ipsa loquitur applies to damages which do not normally occur in the absence of negligence and are caused by an agent or instrumentality entirely under the control of the defendant. Courts have found that it is reasonable for a jury, even without expert testimony, to determine that errors such as leaving medical instruments inside a patient do not occur absent negligence and responsibility may be attributed to the treating doctor’s conduct.
Alternatively, the plaintiff may call the defendant as a witness to testify regarding his own conduct. Although it is obviously in the defendant’s interest not to offer testimony helpful to the plaintiff, the plaintiff may question the defendant about the relevant medical standards in hopes of demonstrating that the defendant’s conduct as a doctor failed to meet these standards. Keep in mind that there is no “right to remain silent” in civil cases (except where the alleged conduct would also constitute a crime) and that defendants, like other witnesses, testify under penalty of perjury. So, examining the defendant himself may be a good way to establish his negligence.
Finally, under the doctrine of negligence per se, the violation of a statute may establish a finding of negligence even without expert witnesses. In one California case, Landeros v. Flood, an infant was brought into an emergency room with an injury that seemed to result from rough handling with no explanation given as to the cause of the injury. The treating doctor did not perform an X-ray on the child which would have revealed a skull fracture and did not diagnose the infant as suffering from battered child syndrome. When the infant suffered further harm after being sent home by the treating physician, the physician was sued on grounds that he violated his duty to inform the relevant authorities about possible child abuse.
In the next module, we will turn to proving the last two elements of a negligence claim, causation and damages. We will also look at possible defenses to medical malpractice lawsuits.
 Restatement(Second) of Torts § 283.
 McCourt By and Through McCourt v. Abernathy, 457 S.E.2d 603, 606-07 (S.C. 1995).
 McCourt By and ThroughMcCourt v. Abernathy, 457 S.E.2d 603, 605-06 (S.C. 1995).
 Hall v. Hilbun, 466 So. 2d 856, 866 (Miss. 1985).
 Jones v. Chidester, 610 A.2d 964, 955 (1992).
 Estate of Smith v. Lernerer, 387 N.W.2d 576, 578, 581-82 (Iowa 1986).
 Joseph H. King, The Law of Medical Malpractice 69 (West, 2d ed 1986); see also Nestorowich v. Ricotta, 767 N.E.2d 125, 129 (N.Y. 2002).
 See Small v. Howard, 128 Mass. 131, 136 (Mass. 1880).
 See, e.g., Kaiser v. Suburban Transp. Sys., 398 P.2d 14, 16 (Wash. 1965).
 Tallbullv. Whitney, 564 P.2d 162, 165-66 (Mont. 1977).
 Chapel v. Allison, 785 P.2d 204, 207 (Mont. 1990).
 Mary Henry, et al. v. Obstetrics And Gynecology Consultants, P.C., et al., 2002 Tenn. App. LEXIS 114 at *15 (Tenn. App. Feb. 8, 2002).
 Douglas v. Lombardino, 693 P.2d 1138, 1144-45 (Kan. 1985).
 Thompson v. Carter 518 So. 2d 609, 614 (Miss. 1987).
 Tate ex rel. Estate of Hall v. Detroit Receiving Hospital, 642 N.W.2d 346, 349 (Mich. Ct. App. 2002).
 Thompson v. Carter, 518 So. 2d 609, 614-15 (Miss. 1987).
 Suhadolnikv. Pressman, 254 P.3d 11, 17-18 (Idaho 2011).
 See Md. Code Ann. Courts and Judicial Proceeding § 3-2A-04(b)(4)
 See Guilbeau v. St. Paul Fire and Marine Ins. Co., 325 So. 2d 395, 398 (La. Ct. App. 1975).
 See Nazar v. Branham, 291 S.W.3d 599, 604-05 (Ky. 2009).
 McDermott v. Manhattan Eye Hosp., 203 N.E.2d 469, 473-74 (N.Y. 1964).
 Landeros v. Flood, 551 P.2d 389, 391-92 (Cal. 1976) (discussing statutory violation as one theory of liability).